1 October 2013

The Charles Taylor Judgment: Disconnecting the Responsibilities of Presidents and States

Initial comments on the judgment of the Special Court for Sierra Leone (SCSL) Appeals Chamber in the Charles Taylor case have focused on the rejection of the ‘specific direction’ standard in relation to complicity, and on the somewhat peculiar method for determining customary law (see Kevin Heller at Opinio Juris and Marko Milanovic at EJIL Talk). But there is more in the judgment that deserves our attention. Notably, the judgment exposes the disconnection of individual responsibility from state responsibility.

The relationship between these two forms of responsibility continues to bewilder courts and scholars alike. The judgment in the Taylor case adds to the complexity and confusion. For instance, both the judgments of the Trial Chamber and the Appeals Chamber include a rather peculiar discussion of the question whether the involvement of the state in extraterritorial crimes is an aggravating factor for individual responsibility, see Dov Jacobs’ comment on the judgment of the Trial Chamber and para. 683 of the judgment, where the Appeals Chamber answers this question in the negative.

Here I leave this particular question aside, and focus on two other issues: first, whether a determination of individual responsibility necessarily will trigger state responsibility, and second, whether individual responsibility can be established in isolation from state responsibility.

As to the first question, it is a fair assumption that when a president is individually responsible under international law, also the state, to which his or her acts can be attributed, can be held responsible. In principle the involvement of Charles Taylor with the atrocities in Sierra Leone indeed would seem to allow for a shared responsibility between Taylor and Liberia. Taylor’s individual responsibility may be complemented by responsibility of Liberia, based, for instance, on breach of the principle of non-intervention, or breach of obligations of international humanitarian law.

However, there is no perfect match between grounds of individual responsibility and grounds of state responsibility. One problem is that crimes against humanity do not always easily translate into grounds for state responsibility. The Taylor judgment exposes another potential gap. The Appeals Chamber affirmed that the actus reus of aiding and abetting liability under Article 6(1) of the SCSL Statute and customary international law is ‘that an accused’s acts and conduct of assistance, encouragement and/or moral support had a substantial effect on the commission of the crimes charged for which he is to be held responsible’ (para. 482). While the acts of Charles Taylor as president of Liberia are of course attributable to the state, the mere encouragement and/or moral support would not necessarily be wrongful for Liberia. While it is possible that a prohibition of encouragement or moral support can be construed as part of particular substantive obligations, general international law knows no responsibility for encouragement (or incitement), see e.g. the Commentary to what was then Article 27 (now Article 16 of the ILC Articles on State Responsibility. Something more – actual assistance – is required.

If I leave aside the possibility that particular substantive obligations encompass a prohibition of encouragement or moral support by states, it follows that a president can be individually responsible under international law, while that act under the standard of a ‘civil claim’ need not be wrongful for the state. A state then may encourage other states or non-state actors to engage in acts that result, for instance, in violations of human rights, without the responsibility of that state being engaged. This inference does not seem entirely baseless. Indeed, there appears to be substantial practice were such support has actually has been given, without this having led to claims of responsibility.

There may be grounds for reconsidering the rejection of incitement as a ground for responsibility in general international law. One (perhaps the main) reason why the ILC did not consider incitement as a ground for state responsibility was that in criminal law incitement ‘has its origin and justification in the psychological motives determining individual conduct, to which the motives of State conduct in international relations cannot be assimilated’ (para. 6 of the ILC Commentary to Article 27). That may be true for one state encouraging another state. But the argument does not hold when a state would encourage an individual. The law of state responsibility remains primarily focused on interstate responsibility and still needs to be adjusted if it is to apply to situations where states aid, assist or encourage individuals.

The second and more fundamental question raised by the judgments is whether, as suggested by the Appeals Chamber, individual responsibility can be established in isolation from state responsibility. Taylor’s Defence team argued that the fact that international law would not recognise state responsibility for the alleged crimes pleaded for a narrow construction of individual responsibility. It argued that the standard applied by the Trial Chamber (and upheld by the Appeals Chamber) was ‘so broad that it would in fact encompass actions that are today carried out by a great many States in relation to their assistance to rebel groups or to governments that are well known to be engaging in crimes of varying degrees of frequency…’. Such assistance, the Defense argued, ‘is going on in many other countries that are supported in some cases by the very sponsors of this Court’ (Defence Oral Argument on Appeal, Appeal transcript, p. 49896).

The Appeals Chamber in principle was right to reject this argument, leaving it to ‘those bodies and tribunals which properly have authority over States to interpret the law on state responsibility’ (para. 436). The development of a customary principle of individual responsibility is based on its own practice, and in principle is not affected by the practice pertaining to state responsibility – even when that practice condones encouragement. In this respect, the brief discussion by the Chamber on the question whether or not the factual assertions by the Defence on the practice of states were correct (para. 462) was not really relevant. Conversely, a very broad construction of individual responsibility for encouragement and moral support does not in itself mean that such encouragement or support is wrongful for the state. The statement by the Defence that ‘the law articulated by the Trial Chamber would in practice overturn the limits of State responsibility as established by the International Court of Justice’ (Taylor Appeal, paras. 388-393) therefore was beside the point.

Yet, the judgment raises a fundamental point. It calls into question one of the traditional justifications of individual responsibility of state officials. It has been said that criminal responsibility of individual state officials can be construed as a legal response to wrongful acts of states.[1] The argument then is that the denial of immunity of a president (a right that pertains to the state, not to the president himself) is justified by the fact that the state committed a (serious) wrongful act. Once it is accepted that a president can be individually responsible for acts that are not per se wrongful for the state, this argument collapses.

An alternative (and probably dominant) construction is that individual responsibility (and the accompanying lack of immunity) is the result of an autonomous development of principles of individual criminal responsibility, and does not need to be derived from responsibility of the state. It would seem that this was the approach of the SCSL. Yet, it remains conceptually problematic to disconnect the responsibility of a leader of a state, whose acts can only be explained by the fact that he acted for the state, entirely from the responsibility of the state itself, From a more practical perspective, one wonders how much support states will give to principles that will allow prosecution of presidents for acts that are perfectly normal (or at least lawful) for the state.

[1] E.g. Pierre-Marie Dupuy, International Criminal Responsibility of the Individual and International Responsibility of the State, in Antonio Cassese, Paola Gaeta and John R.W.D. Jones (eds.), 2 The Rome Statute of the International Criminal Court: A Commentary (OUP, 2002) 1085, 1091.

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